REGINALD ROBERT v. JAMIE MAURICE, et al CIVIL ACTION NO. 18-11632 United States District Court, E.D. Louisiana Signed March 11, 2022 Counsel Vanessa Motta, Motta Law, LLC, New Orleans, LA, Joseph M. Bruno, Bruno & Bruno, New Orleans, LA, for Reginald Robert. Guy D. Perrier, Nathan M. Gaudet, Perrier & Lacoste, LLC, New Orleans, LA, Dustin L. Poche, Irpino, Avin & Hawkins Law Firm, New Orleans, LA, for Jamie Maurice, Knight Transportation, Inc. Brown, Nannette J., United States District Judge ORDER AND REASONS *1 Before the Court is Plaintiff Reginald Robert's (“Plaintiff”) “Motion in Limine to Exclude And/Or Limit Cell Phone Records.”[1] Although so titled, the motion seeks exclusion of various categories of evidence. Defendants Jamie Maurice (“Maurice”) and Knight Transportation, Inc. (“Knight Transportation”) (collectively, “Defendants”) oppose the motion.[2] Considering the motion, the memoranda in support and in opposition, the record, and the applicable law, the Court denies the motion. I. Background On November 27, 2018, Plaintiff filed a complaint against Defendants Maurice and Knight Transportation in this Court, seeking recovery for injuries and property damage Plaintiff allegedly sustained in a motor vehicle collision.[3] According to the Complaint, on November 28, 2017, Plaintiff was allegedly operating a vehicle on US 90 while an 18-wheeler driven by Maurice was attempting to merge onto US 90 from the onramp.[4] Plaintiff alleges that Maurice negligently failed to keep a proper lookout and abruptly merged into the third lane of US 90 where the Plaintiff was traveling, causing a collision between the two vehicles.[5] Plaintiff alleges that the vehicle being driven by Maurice was owned by Knight Transportation, and that Maurice was within the course and scope of his employment with Knight Transportation when he collided with Plaintiff's vehicle.[6] Accordingly, Plaintiff brings a negligence claim against Maurice and Knight Transportation, under the doctrine of respondeat superior.[7] On January 11, 2019, Defendant Knight Transportation answered the Complaint.[8] On March 1, 2019, Defendant Jamie Maurice answered the Complaint.[9] With leave of Court granted on September 9, 2019, Defendants filed an Amended Answer.[10] In the Amended Answer, Defendants assert “[a]ll alleged damages and/or injuries made the subject of this litigation were proximately caused solely and entirely by the intentional acts of and/or negligence of Plaintiff, Reginal Robert.”[11] On September 26, 2019, this Court granted Defendants' Motion for Partial Summary Judgment.[12] As a result, Plaintiff's cause of action alleging the direct negligence of Knight Transportation in the form of negligent entrustment, negligent hiring, training and supervision was dismissed, with prejudice.[13] The Court's order did not affect Plaintiff's remaining cause of action against Maurice for negligence and Knight Transportation for vicarious liability for the alleged actions of Maurice.[14] On May 14, 2021, the Court denied Plaintiff's motion for partial summary judgment on medical causation.[15] On May 17, 2021, the Court denied Plaintiff's motion to strike Defendants' “intentional acts” defense.[16] The trial has been continued several times and is set for March 21, 2022.[17] *2 On February 16, 2022, Plaintiff filed the instant Motion in Limine to Exclude And/Or Limit Cell Phone Records.”[18] On February 22, 2022, Defendants opposed the motion.[19] On March 9, 2022, with leave of Court, Plaintiff filed a reply.[20] II. Parties' Arguments A. Plaintiff's Arguments in Support of the Motion Plaintiff asks the Court to exclude various categories of evidence.[21] First, Plaintiff argues that the cell phone records should be excluded as a discovery sanction.[22] Second, Plaintiff argues that the phone records are inadmissible.[23] Third, Plaintiff argues that evidence of indictments, arrests, or other criminal records of Cornelius Garrison should be excluded.[24] Fourth, Plaintiff argues that Claude Kelly should not be permitted to testify at trial.[25] Fifth, Plaintiff argues that evidence of Cornelius Garrison's deposition testimony should be excluded.[26] Lastly, Plaintiff contends that evidence of court pleadings and police reports related to other accidents should be excluded.[27] 1. Plaintiff Argues that the Cell Phone Records Should be Excluded as a Discovery Sanction Plaintiff argues that the Court should exclude evidence of cell phone records between Plaintiff and the 504-564-2011 number as a discovery sanction because Plaintiff asserts that Defendants engaged in various forms of misconduct during discovery.[28] First, Plaintiff argues that Defendants misrepresented that they were not in possession of any statements from Maurice.[29] Plaintiff contends that although Defendants represented that Maurice did not make any statement after the accident, they in fact “moved or re-classified” a statement from Maurice as “Claims Notes.”[30] Plaintiff argues that the Magistrate Judge “found a statement from Defendant Maurice,” citing to the Magistrate Judge's March 3, 2020 Order on Defendants' objections to a request for production.[31] Second, Plaintiff argues that Defendants provided misrepresentations to the Court in order to amend their answer to include the affirmative defense.[32] Plaintiff points to Defendants opposition to Plaintiff's Motion to Produce Claims Notes, where Defendants stated that Defendant Knight immediately recognized the “red flags” associated with Plaintiff's claim.[33] Plaintiff argues that this conflicts with Defendants' earlier representation in their motion for leave to amend the answer that they did not have sufficient discovery to assert the affirmative defense in the original answer.[34] Plaintiff argues that the Court was “duped” by this “false excuse to allege the affirmative defense well after the pleading deadline.”[35] Lastly, Plaintiff argues that Defendants have “changed [their] theory as to what [they] rely upon” to support their affirmative defense.[36] Plaintiff argues that although Defendants initially indicated that their defense was based on Maurice's “first-hand knowledge of the accident,” this is somehow in conflict with Maurice's deposition testimony where he stated that he “[j]ust didn't see them” when he changed lanes.[37] Plaintiff argues that Defendants have had to “change [their] strategy” to relying on the phone call between Plaintiff and the 504-564-2011 number.[38] 2. Plaintiff Asserts that the Phone Records Are Inadmissible *3 Plaintiff argues that the phone records that Defendants allege involve phone calls between Plaintiff and Cornelius Garrison should be excluded. Plaintiff contends that these calls are unreliable for several reasons.[39] First, Plaintiff contends that the cell phone in question belonged to Shantell Morris, not Cornelius Garrison, and that Defendants have no evidence that Garrison was using the phone.[40] Plaintiff points to a document from T-Mobile indicating that the phone number was registered to Shantel Morris,[41] and notes that Defendants provided other phone numbers for Cornelius Garrison during discovery.[42] Second, Plaintiff contends that Defendants' allegations that Plaintiff was in contact with Garrison cannot be substantiated because the phone records show that the phone calls never connected, and instead went to voicemail.[43] Furthermore, Plaintiffs argue that the phone records are not reliable because, although the number registered to Shantel Morris shows a call from Plaintiff, Plaintiff's phone records do not show that call being made.[44] Plaintiffs contend that Defendant has not provided evidence to explain this discrepancy in the cell phone records.[45] Plaintiff also argues that the cell phone records are irrelevant because they are from more than a week prior to the accident.[46] Plaintiff contends that this Court already ruled that cell phone records beyond the date of the accident are not relevant, citing to the Magistrate Judge's February 19, 2020 Order on Defendants' motion to quash a subpoena for Maurice's phone records.[47] Plaintiff argues that Defendants cannot simultaneously argue that Maurice's cell phone records should be limited to the day of the accident but that Plaintiff's records for more than a week prior to the accident are relevant.[48] Thus, Plaintiff contends that his phone records should be excluded or limited because they are irrelevant and not proportional to the needs of the case.[49] 3. Plaintiff Argues that Evidence of Indictments, Arrests, or Criminal Records of Cornelius Garrison Should be Excluded Next, Plaintiff argues that, if the Court does not exclude the cell phone evidence, it must exclude any reference to Cornelius Garrison's arrests, indictments, or other criminal records.[50] Plaintiff notes that Garrison was indicted in September of 2020 for allegedly staging two car accidents.[51] Nevertheless, Plaintiff contends that the indictment has no bearing on this case or accident, as Plaintiff has not been indicted for staging this accident or any other.[52] Plaintiff further argues that because Garrison is a non-party, and because he cannot testify in this case, the conviction is inadmissible.[53] Plaintiff relies on Wright v. National Interstate Insurance Co., decided by another district judge in the Eastern District of Louisiana, for the proposition that admission of Garrison's conviction is highly prejudicial and should be excluded under Rule 403 of the Federal Rules of Evidence.[54] Plaintiff also contends that the indictment against Garrison is inadmissible hearsay and must be excluded “pursuant to LSA-C.E. articles 801-803,” because they contain “out of court statements, made by others, which are purportedly being offered to show the truth of the matter(s) asserted.”[55] Lastly, Plaintiff argues that because Garrison is not a party to this case, the indictment is “independently inadmissible pursuant to LSA-C.E. article 609.”[56] Thus, Plaintiff contends that the Court must exclude “any reference whatsoever, via question or otherwise, to criminal records, testimony, or other evidence pertaining thereto of the non-witness Garrison from the trial of this matter.”[57] 4. Plaintiff Contends that the Trial Testimony of Claude Kelly Should be Excluded *4 Plaintiff argues that Claude Kelly, who is listed on Defendants' witness list, cannot be permitted to testify.[58] Plaintiff notes that Mr. Kelly is an attorney who represented Mr. Garrison.[59] Plaintiff contends that Mr. Kelly may not be permitted to testify about any information that is protected by attorney-client privilege, because that privilege survives Garrison's death.[60] Plaintiff argues that anything Mr. Kelly may testify about is covered by attorney-client privilege “unless that privilege was waived by Garrison prior to his death.”[61] Plaintiff notes that Defendants have not offered any suggestion that Garrison waived the privilege prior to his death.[62] Thus, Plaintiff asks the Court to exclude Mr. Kelly from testifying.[63] 5. Plaintiff Asserts that the Deposition Testimony of Cornelius Garrison Should be Excluded Plaintiff asks the Court to exclude evidence from Garrison's deposition testimony where he invoked the Fifth Amendment.[64] Plaintiff points to various parts of Garrison's deposition testimony to demonstrate that the deposition shows only that Mr. Garrison “was not answering any questions other than his name.”[65] Plaintiff points out, for example, that Garrison invoked the Fifth Amendment when asked his date of birth and his social security number.[66] Thus, Plaintiff asserts that “[i]t would not have mattered what question defense counsel asked, what subject, or what person, Garrison was invoking his 5th Amendment right.”[67] Plaintiff argues that Garrison's repeated invocation of his Fifth Amendment right has “nothing to do with this case other than Defendants attempts to prejudice and confuse the jury.”[68] Thus, Plaintiff contends that the deposition testimony is not relevant and should be excluded.[69] Plaintiff argues that the deposition testimony must be excluded based on a four-part test from Libutti v. United States, decided by a panel of the United States Court of Appeals for the Second Circuit.[70] Plaintiff argues that the Second Circuit identified the following four non-exclusive factors for courts to consider: (1) the nature of the relevant relationship; (2) the degree of control of the party over the nonparty witness; (3) the compatibility of the interests of the party and non-party witness in the outcome of the litigation; and (4) the role of the non-party witness in the litigation.[71] Plaintiff argues that the first factor favors exclusion of Garrison's deposition testimony because Plaintiff testified that he does not know Garrison, and that there is insufficient evidence of a relationship between Plaintiff and Garrison based on the phone records.[72] Plaintiff argues that the second factor usually involves whether a party to the litigation has a relationship of control over the non-party who invokes the Fifth Amendment, and that Plaintiff and Garrison have no such relationship of control.[73] Plaintiff contends that the third factor favors exclusion because Garrison had no interest in the outcome of the litigation.[74] Lastly, Plaintiff contends that the fourth factor favors exclusion because Garrison had no role in this litigation, as his indictment was unrelated to this incident and the phone records demonstrate that Garrison did not speak to Plaintiff. Furthermore, Plaintiff contends that the accidents that Garrison was indicted for “were nothing like the instant accident.”[75] 6. Plaintiff Contends Evidence of Pleadings and/or Police Reports Regarding Other Collisions Should be Excluded *5 Plaintiff seeks to prevent Defendants from introducing any pleadings or police reports from other accidents that Defendants claim were similar to the accident at issue.[76] First, Plaintiff argues that these materials are “hearsay within hearsay documents [ ] which contain statements of witnesses and opinions of officers who are not listed as witnesses in this case.”[77] Second, Plaintiff argues that Defendants have not provided these materials to Plaintiff's counsel or this Court.[78] Third, Plaintiff argues that even if these accidents were relevant, they should be excluded because their admission would unfairly prejudice Plaintiff, confuse the issues, mislead the jury, and waste time.[79] B. Defendants' Arguments in Opposition to the Motion 1. Defendants Contend that no Discovery Misconduct Occurred Defendants argue that Plaintiff's argument that they have engaged in discovery abuses is a “rehashing of past grievances Plaintiff has against the Court for various decisions, mostly related to the consistent upholding of Defendants' right to assert their affirmative defense.”[80] Defendants contend that they did not “move or re-classif[y]” any statement of Maurice, as Plaintiff claims.[81] Defendants argue that Maurice “made no written or recorded statement following the alleged accident, other than the statement attached to the police report.”[82] 2. Defendants Argue that the Phone Records are Admissible In opposition to Plaintiff's argument that the phone records should be excluded, Defendants contend that the phone number belonged to Garrison.[83] First, Defendants argue that Plaintiff's counsel admitted that this was Garrison's number in “multiple past filing submitted on his behalf.”[84] Defendants point to motions that Plaintiff's counsel filed in two cases, one in the state court and one in another section of this Court, where the motions repeatedly associate Garrison with the phone number at issue.[85] Thus, based on these filings, Defendants contend that the Court can “take judicial notice that 504-564-5011 was Garrison's number.”[86] Second, Defendants argue that Garrison's medical records show that he was using this phone number.[87] Defendants point to records provided by Hotard Coaches, Inc., which was a defendant in another case involving a collision between Garrison and Hotard.[88] In response to a subpoena requesting certified medical records containing Garrison's phone number, Hotard Coaches, Inc. produced documents which listed the number at issue, in addition to other phone numbers.[89] Defendants argue that “this evidence alone would be sufficient evidence to link the number to Mr. Garrison.”[90] Third, Defendants argue that internet searches on various platforms also associate the number with Garrison.[91] Fourth, Defendants argue that although the phone number at issue was registered to Shantell Morris, Ms. Morris testified that she had a different number.[92] Lastly, Defendants contend that phone records show that the number in question was in communication with another number, registered to Plaintiff's counsel's law firm, on numerous occasions.[93] In response to Plaintiff's argument that the AT&T phone records do not show the call between Plaintiff and the number alleged to belong to Garrison, Defendants provide phone records obtained from Sprint that do show the communication.[94] Defendants argue that at the time of the accident, Plaintiff had Sprint rather than AT&T.[95] In opposition to Plaintiff's argument that the Court has already determined that phone records beyond the date of the accident are not relevant, Defendants argue that this is incorrect.[96] Defendants argue that because there is no allegation that Maurice staged the accident, Maurice's phone records from the day of the accident only are relevant in order to determine whether he was on the phone at the time of the accident.[97] To the contrary, Defendants contend that Plaintiff's phone records beyond the date of the accident are relevant for the issue of whether Plaintiff intentionally caused the accident with the help of Garrison.[98] 3. Defendants Assert that Evidence of Indictments, Arrests, or Other Criminal Records of Cornelius Garrison are Admissible *6 Defendants argue that Garrison's indictment is relevant to their affirmative defense that Plaintiff intentionally caused the collision and is not excludable under Rule 403.[99] Defendants assert that Wright v. National Interstate Ins. Co., a case relied on by Plaintiff, is distinguishable.[100] Defendants argue that although the district judge excluded a past criminal conviction of the defendant driver, he did so because the convictions did not relate to trustworthiness, nor were they relevant to what happened on the day of the accident.[101] Here, Defendants contend that Garrison's indictment is relevant to what happened on the day of the accident, as it is related to their affirmative defense.[102] Defendants also argue that the indictment is not hearsay.[103] Defendant argues that it is not being used for its truth, but rather to show “lack of accident,” as permitted by Rule 404(b)(2).[104] 4. Defendant Asserts that the Trial Testimony of Claude Kelly is Admissible Defendants argue that they “can and will call Claude Kelly as a witness.”[105] Defendants note that although Mr. Kelly has been served with a trial subpoena, he has not filed a motion to quash the subpoena.[106] Defendants contend that even though the attorney-client privilege survives the client's death, that “is not a reason a person cannot be called as witness.”[107] Instead, Defendants suggest that the privilege does not protect “every single detail of a relationship between an attorney and his or her client.”[108] Furthermore, Defendants argue that “Mr. Kelly, should he so choose, can assert the attorney-client privilege, but Plaintiff cannot direct him to do so.”[109] 5. Defendants Contend that the Deposition Testimony of Cornelius Garrison is Admissible Defendants argue that Garrison's deposition testimony in which he invoked his Fifth Amendment rights is admissible.[110] Defendants contend that the four-part test Plaintiff cites is not applicable to the Fifth Circuit.[111] Instead, Defendants point to the Fifth Circuit's decision in FDIC v. Fid & Deposit Co. of Maryland for the proposition that a jury may draw an adverse inference from a witnesses' invocation of the Fifth Amendment, and that when the witness is not a party, Fifth Amendment concerns are implicated “to an even lesser degree.”[112] Thus, Defendants argue that Garrison's testimony is relevant and admissible.[113] 6. Defendant Contends that the Pleadings and/or Police Reports from Similar Accidents Are Admissible Defendants argue that the use of this evidence is not prohibited.[114] First, Defendants distinguish the cases cited by Plaintiff on the grounds that those cases involved claims of fraud.[115] Then, Defendants argue that they “have the right to question Plaintiff and any other witness using this impeachment information. The exhibits are certified and authentic.”[116] C. Plaintiff's Arguments in Further Support of the Motion 1. Phone Records In reply, Plaintiff again argues that the cell phone records are unreliable and should be excluded.[117] Plaintiff again points out that although Sprint records show that the 504-564-2011 number received a phone call from Plaintiff, “the phone records of AT&T, who also serviced [Plaintiff's] cell phone in November 2017 ... do not have any record of any such call occurring.”[118] Plaintiff further reargues that the phone number in question did not belong to Garrison.[119] Plaintiff argues that AT&T records show that the phone number in question is registered to Shantell Morris.[120] In response to the evidence of “internet searches” produced by Defendants purportedly connecting the number to Garrison, Plaintiff argues that “no documents” of such a search have been provided in discovery nor disclosed in the pretrial order.[121] In response to Defendants' evidence of Ms. Morris' deposition, Plaintiff again argues that this document was not listed in the pretrial order.[122] Plaintiff further argues that the cited deposition occurred in 2015, more than fifteen months prior to the alleged phone call.[123] In response to the documents that Plaintiff's counsel filed in other cases, Plaintiff argues that these documents similarly were not listed in the pretrial order.[124] Lastly, in response to the evidence of Garrison's medical records, Plaintiff points out that Defendants' reliance on the records is flawed because the medical records also show other phone numbers for Mr. Garrison.[125] 2. Evidence of Indictments, Arrests, or Criminal Records of Cornelius Garrison *7 As to Mr. Garrison's indictment, Plaintiff argues that the indictment is not admissible under Rule 404(b)(2).[126] Plaintiff contends that “Defendant[s] know[ ] there is no merit to this assertion.”[127] Plaintiff further argues that Mr. Garrison's “wholly separate indictment has nothing to do with the facts” of this accident or Plaintiff.[128] 3. Deposition Testimony of Cornelius Garrison Plaintiff reargues that Garrison's deposition should be excluded. Plaintiff contends that Defendant “did not even attempt to discuss any of the four factors” used by the Second Circuit in LiButti v. United States.[129] Plaintiff further argues that because Garrison refused to answer any questions, “there was nothing to confirm” that Garrison's invocation of the Fifth Amendment suggested an inference of his guilt.[130] Furthermore, Plaintiff argues that the circumstances of the accident for which Garrison was indicted were not similar to Plaintiff's accident.[131] Plaintiff notes that Garrison's accident occurred in “New Orleans East on the Interstate and involved a Hotard bus, not an 18-wheeler,” and that Plaintiff's collision “occurred on US90B coming into New Orleans from the Mississippi River Bridge.”[132] Plaintiff further highlights that his accident occurred “in broad daylight, with a Louisiana State Trooper parked on the side of the road, captured on Defendant's dash camera, with multiple vehicles in front of, on side of and behind Plaintiff's vehicle.”[133] 4. Evidence of Pleadings and/or Police Reports Regarding Other Collisions Furthermore, Plaintiff argues that the use of any pleadings or police reports of other accidents is prohibited.[134] Plaintiff re-urges its reliance on Judge Zainey's opinion in Baham v. Lovorn & Lovorn Trucking, Inc., as well as a decision by a judge in the Civil District Court for Orleans Parish.[135] III. Law & Analysis Plaintiff's motion, though titled “Motion in Limine to Exclude And/Or Limit Cell Phone Records,”[136] seeks to exclude various other categories of evidence. The Court will address each category of evidence in turn. 1. Whether Evidence Should be Excluded Due to Alleged Discovery Misconduct Plaintiff argues that Defendants have engaged in various forms of misconduct during discovery. Before turning to these arguments, the Court notes that a motion in limine is not an appropriate substitute for a motion for discovery sanctions that should have been brought earlier.[137] Here, the events that Plaintiff complains about occurred nearly two years ago. Thus, Plaintiff's attempt to litigate these issues in a motion in limine is improper. Nevertheless, the Court also finds Plaintiff's arguments are unfounded. First, Plaintiff argues that Defendants misrepresented that they were not in possession of any statements from Maurice.[138] Plaintiff contends that although Defendants represented that Maurice did not make any statement after the accident, they in fact “moved or re-classified” a statement from Maurice as “Claims Notes.”[139] Plaintiff argues that the Magistrate Judge “found a statement from Defendant Maurice,” citing to the Magistrate Judge's March 3, 2020 Order on Defendants' objections to a request for production. In opposition, Defendants argue that they did no such thing, that no such statement exists, and that the Magistrate Judge did not find otherwise.[140] *8 The Court agrees that Plaintiff has not shown any misconduct on behalf of Defendants. The Magistrate Judge's order that Plaintiff relies on ruled only that Defendants had not met their burden of demonstrating that certain documents were protected by the work product doctrine.[141] The Magistrate Judge did not find a statement from Maurice, nor did the Magistrate Judge sanction or admonish Defendants. Therefore, the Court will not exclude evidence of the phone records on this basis. Second, Plaintiff argues that Defendants provided misrepresentations to the Court in order to amend their answer to include the affirmative defense.[142] Plaintiff points to Defendants opposition to Plaintiff's Motion to Produce Claims Notes, where Defendants stated that Defendant Knight Transportation immediately recognized the “red flags” associated with Plaintiff's claim.[143] Plaintiff argues that this conflicts with Defendants earlier representation in their Motion for Leave to Amend the Answer that they did not have sufficient discovery to assert the affirmative defense in the original answer.[144] Based on this alleged inconsistency, Plaintiff appears to argue that the Court was “duped” into allowing Defendants to amend their original answer to include the affirmative defense.[145] The Court disagrees. That Defendants may have recognized red flags associated with the accident immediately does not mean that they had sufficient discovery to justify asserting an affirmative defense at that stage in the litigation. Rather, as the Magistrate Judge concluded in granting Defendants' Motion for Leave to Amend the Answer, “Defendants simply did not have information in its possession which would have warranted their amending of their answers prior to receipt of Plaintiff's discovery responses.”[146] Thus, the Court will not exclude the phone records on this basis. Lastly, Plaintiff argues that Defendants have “changed [their] theory as to what [they] rely upon” to support their affirmative defense.[147] Plaintiff argues that although Defendants initially indicated that their defense was based on Maurice's “first-hand knowledge of the accident,” this is in conflict with Maurice's deposition testimony where he stated that he “[j]ust didn't see them” when he changed lanes.[148] Plaintiff argues that Defendants have had to “change [their] strategy” to relying on the phone call between Plaintiff and the 504-564-2011 number.[149] Again, the Court disagrees. Maurice's testimony that he did not see Plaintiff is not necessarily inconsistent with Defendants' affirmative defense. Defendants' position is that Maurice “did not see the vehicle because it was not there until Plaintiff intentionally drove it into his trailer.”[150] The jury, of course, may see the evidence differently. However, this supposed inconsistency is no basis for excluding the records of the phone calls between Plaintiff and the 504-564-2011 number. 2. Whether Phone Records Allegedly between Plaintiff and Cornelius Garrison Should be Excluded Plaintiff objects to Defendants' use of phone records to show phone calls between Plaintiff and Garrison on various grounds. Defendants seek to introduce evidence of two phone calls made by Plaintiff to the number 504-564-2011. The parties dispute whether or not this number in fact belonged to Mr. Garrison. *9 Plaintiff offers two pieces of evidence to demonstrate that the number did not belong to Garrison. First, Plaintiff produces evidence from T-Mobile which lists the “subscriber name,” “account name,” and “bill name” for the phone number 504-564-2011 as “Shantel Morris.”[151] Second, Plaintiff notes that “during discovery, Defendant[s] provided an alternative phone number from Garrison which lists his cell phone number as 504-206-7625, 504-286-0447, and 504-377-9448 as his primary contact numbers.”[152] Plaintiff attaches evidence associating Garrison with each of those other numbers.[153] In response, Defendants seek to link Garrison to the phone number at issue by pointing to the following: (1) statements made by Plaintiff's counsel in motions in other cases; (2) Mr. Garrison's medical records; (3) internet searches for the phone number; and (4) Ms. Morris's 2016 deposition testimony where she stated that her phone number was 504-662-4611.[154] In reply, Plaintiff objects to Defendants' use of statements made by Plaintiff's counsel, internet searches, and Ms. Morris's deposition testimony because, according to Plaintiff, this evidence was not disclosed in discovery or in the pretrial order.[155] As to Garrison's medical records, Plaintiff argues that they are “unreliable” because in addition to containing the phone number at issue, they also contained other phone numbers.[156] However, evidence that Garrison may have had multiple phone numbers does not contradict Defendants' evidence that the 504-564-2011 number was used by Garrison. Defendants have produced evidence of Garrison's medical records related to his treatment for a collision that was the subject of litigation in another matter.[157] In those records, including several signed by Garrison himself,[158] Garrison's phone number is listed as 504-564-2011.[159] Defendants may rely on this evidence to argue that the phone number was used by Garrison. Plaintiff is free to argue to the jury that the phone number did not belong to Garrison. This is an issue of fact for the jury to decide, not an evidentiary issue for the Court. Plaintiff goes on to argue that the cell phone records are “unreliable” for two reasons. First, Plaintiff points to evidence that the alleged phone calls went straight to voicemail, and thus the calls never connected.[160] Second, Plaintiff argues that the cell phone records do not “match-up” because, according to Plaintiff, although the incoming call appears in the phone records of the 504-564-2011 number, the outgoing call from Plaintiff does not appear on Plaintiff's phone records.[161] In opposition, Defendant provides evidence suggesting that the call does appear on Plaintiff's phone records.[162] The Court need not resolve whether there is a discrepancy between Plaintiff's phone records and the phone records for the 504-564-2011 number. Whether or not any discrepancy between the phone records exist does not go to the admissibility of the evidence, but to its weight. Thus, the Court will not exclude the phone records on this basis. Lastly, Plaintiff argues that cell phone records from more than a week prior to this accident are irrelevant and contends that this Court has already determine this issue.[163] Plaintiff cites the Magistrate Judge's Order on Defendant's Motion to Quash a subpoena for Maurice's phone records.[164] However, Plaintiff's sought Maurice's phone records for a different purpose: to determine whether and when Maurice made statements to Knight Transportation after the accident.[165] Thus, the Magistrate Judge determined that only Maurice's phone records for the day of the accident and the day after were relevant.[166] However, Defendants seek to use Plaintiff's phone records to support their affirmative defense that Plaintiff staged the accident. Phone calls from Plaintiff to Mr. Garrison a week prior to the accident are relevant to this affirmative defense. Thus, the Court will not exclude the phone records on this basis. 3. Whether Evidence of Indictments, Arrests, or Other Criminal Records of Cornelius Garrison Should be Excluded *10 Plaintiffs argue that evidence of Mr. Garrison's indictment, arrest, and criminal records must be excluded for the following reasons: (1) the evidence is irrelevant, as Plaintiff has not been indicted for staging this accident nor any other; (2) the evidence is prejudicial and should be excluded under Rule 403; (3) the evidence is hearsay. First, the Court disagrees that the evidence is irrelevant. The Federal Rules of Evidence provide that evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.[167] Here, Defendants intend to offer evidence that Garrison was in contact with Plaintiff prior to the collision at issue. Defendants plan to introduce evidence suggesting that Plaintiff was in contact with an individual, Cornelius Garrison, who was indicted for staging car accidents. And that fact is of consequence to Defendants' affirmative defense. Therefore, Garrison's indictment is relevant, and can be admitted so long as it is not excludable by any other rule of evidence. Next, Plaintiff appears to argue that the evidence is prejudicial and must be excluded under Rule 403. Plaintiff relies on Wright v. National Interstate Insurance Co., decided by another judge in this district. In that case, the district judge excluded evidence of the defendant-driver's conviction for possession of stolen goods, cocaine, and marijuana, because they did not relate to trustworthiness and had “little, if any, probative value on what allegedly happened that day of the car accident.”[168] Here, however, Defendants seek to introduce evidence of Garrison's indictment for staging car accidents, which is directly related to Defendants' affirmative defense. Thus, unlike the convictions in Wright, Mr. Garrison's indictment is probative of what happened on the day of the collision at issue in this case. Of course, Wright involved a conviction, and the issue before the Court is whether to permit evidence of Garrison's indictment. As a general rule, evidence of an indictment is not admissible as character evidence against a party or witness. Federal Rule of Evidence 404(b)(1) provides that “[e]vidence of any other crime, wrong, or act is not admissible to prove a persons' character in order to show that on a particular occasion the person acted in accordance with the character.”[169] However, pursuant to Federal Rule of Evidence 404(b)(2), evidence of a crime “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identify, absence of mistake, or lack of accident.”[170] “[T]he general rule of exclusion in Rule 404(b) only excludes evidence of other crimes when offered to prove the conduct of a person by resort to an inference as to his character.”[171] Indictments and arrests are “other bad acts” under Rule 404. However, evidence of Garrison's indictment is not being used to demonstrate Mr. Garrison's character. Rather, it is being used to prove a “plan,” “absence of mistake,” or “lack of accident,” as permitted by Rule 404(b)(2). Nevertheless, to eliminate any confusion that reference to indictments and arrests may create for the jury, the Court will instruct the jury that an arrest or indictment is only an accusation against someone and is not indicative of guilt. *11 Lastly, Plaintiff argues that the evidence of Garrison's indictment is hearsay because it “consists[s] of out of court statements, made by others, which are purportedly being offered to show the truth of the matter(s) asserted therein.”[172] However, for the same reason discussed above, Plaintiff is mistaken. Defendants do not seek to introduce the indictment to prove that Garrison staged the car accidents for which he was indicted. Instead, Defendants seek to introduce the evidence to show a “plan,” “absence of mistake,” or “lack of accident” with respect to the collision between Plaintiff and Maurice. Thus, this evidence is not hearsay. 4. Whether the Trial Testimony of Claude Kelly is Admissible Plaintiff argues that Defendants should be precluded from calling Claude Kelly as a witness, as doing so would violate attorney-client privilege. In a diversity case, state law provides the applicable law of attorney-client privilege.[173] Louisiana Code of Evidence article 506(B) provides that “[a] client has a privilege to refuse to disclose, and to prevent another person from disclosing, a confidential communication, whether oral, written, or otherwise, made for the purpose of facilitating the rendition of professional legal services to the client.”[174] “The purpose of the privilege is to encourage the client to confide fully in his counsel without fear that his disclosures could be used against him by his adversaries.”[175] “The party seeking to assert the attorney-client privilege has the burden of proving that the privilege is applicable.”[176] Here, Plaintiff seeks to prevent Defendants from calling Claude Kelly as a witness at trial.[177] The Court rejects this argument for several reasons. First, Louisiana law authorizes “a client” to “refuse to disclose” or “prevent another person from disclosing” confidential communications.[178] The privilege may be claimed by “the client, the client's agent or legal representative.”[179] Thus, Plaintiff's counsel cannot invoke the attorney-client privilege on Mr. Garrison's behalf. Furthermore, the parties have not indicated precisely what Mr. Kelly will testify about. Thus, the Court is unable to determine whether that information falls within the attorney-client privilege or whether it has been waived. Therefore, Plaintiff's request is denied. Mr. Kelly may, of course, invoke the privilege at trial where appropriate. 5. Whether Evidence of Cornelius Garrison's Deposition Should be Excluded Plaintiff seeks to exclude evidence of Garrison's deposition in this matter, where he invoked the Fifth Amendment. Plaintiff argues that the deposition should be excluded for two reasons. First, Plaintiff contends that it is not relevant under the four-part test identified in Libutti v. United States. Second, Plaintiff argues that the deposition testimony is irrelevant and prejudicial. The Court will address each in turn. Plaintiff relies on Libutti v. United States, decided by the Second Circuit, for the proposition that there is a four-part test to determine whether a non-party's invocation of the Fifth Amendment is admissible. As described by the Second Circuit, those four factors are: (1) the nature of the relevant relationships between the witness and the parties, (2) the degree of control that a party has over the witness; (3) the compatibility of the interests of the party and witness in the outcome of the litigation; and (4) the role of the nonparty witness in the litigation. Plaintiff argues that Garrison's deposition testimony is inadmissible under this test for various reasons.[180] *12 However, the Court need not consider those arguments because Plaintiff's reliance on that test is misplaced. Plaintiff offers no authority suggesting that this test is applicable in the Fifth Circuit. The Court has not found a single Fifth Circuit case, nor any district court case within the Fifth Circuit, that has adopted this test. The Court will instead rely on decisions of the Supreme Court and the Fifth Circuit regarding the admissibility of invocations of the Fifth Amendment. The Supreme Court has long held that “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.”[181] Applied to non-party witnesses, the Fifth Circuit explained in FDIC v. Fidelity & Deposit Co. that a “non-party's silence in a civil proceeding implicates Fifth Amendment concerns to an even lesser degree.”[182] “Because there is no constitutional bar to the admission of this evidence, it is admissible if it is relevant and not otherwise prohibited by the rules.”[183] In that case, the Fifth Circuit then noted that the evidence was relevant because “the jury could determine that the witness who colluded” with an agent of the defendant “took the Fifth Amendment to avoid disclosing that collusion.”[184] The Court instructed that district courts must “evaluate these situations on a case-by-case basis.”[185] Thus, it is clear that in the Fifth Circuit, evidence of a non-party's invocation of the Fifth Amendment is admissible unless otherwise excludable. Plaintiff also argues that admission of this deposition testimony is prejudicial and must be excluded under Rule 403. Of course, “relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under Rule 403.”[186] Plaintiff has not shown that the probative value of this evidence is substantially outweighed by its prejudicial effect. The Court will instruct the jury on the inferences that may be drawn when a witness invokes the Fifth Amendment in a civil case.[187] 6. Admissibility of Evidence of Petitions and/or Police Reports of Other Collisions Plaintiff seeks to exclude evidence of “[p]etitions and/or police reports from incidents that occurred in a similar time, place or manner as the subject incident involving individuals that communicated with plaintiff before or after the subject incident.”[188] At the outset, the Court notes that it is not clear precisely which accidents Defendants seek to use, and that Plaintiff's objections to these petitions and reports are inconsistent. Plaintiff asserts first that these must be excluded because they are “hearsay within hearsay documents [ ] which contain statements of witnesses and opinions of officers who are not listed as witnesses in this case.”[189] Second, Plaintiff states that “none of Defendants' proposed petitions and/or police reports of other incidents contain statements of the Plaintiff.”[190] Third, Plaintiff states that “Defendant does not state nor provide counsel or this court which pleadings or police reports [Defendants] [are] alluding to.”[191] *13 The Court cannot rule on this request absent additional information about the collisions that Defendants intend to use. However, the Court notes that it is not inclined to admit evidence of accidents that Plaintiff was not involved in. The probative value of any such evidence is likely substantially outweighed by the potential for unfair prejudice. Nevertheless, the Court denies the instant motion. This issue may be raised at trial, if necessary. IV. Conclusion For the foregoing reasons, the Court grants the motion in part and denies it in part. Accordingly, IT IS HEREBY ORDERED that Plaintiff Reginald Robert's “Motion in Limine to Exclude And/Or Limit Cell Phone Records”[192] is DENIED. NEW ORLEANS, LOUISIANA, this 11th day of March, 2022. Footnotes [1] Rec. Doc. 210. [2] Rec. Doc. 211 [3] Rec. Doc. 1. [4] Id. at 3. [5] Id. [6] Id. [7] Id. at 5. [8] Rec. Doc. 7. [9] Rec. Doc. 9. [10] Rec. Docs. 22, 23. [11] Rec. Doc. 23 at 5. [12] Rec. Doc. 26. [13] Id. [14] Id. [15] Rec. Doc. 175. [16] Rec. Doc. 176 [17] Rec. Doc. 217. [18] Rec. Doc. 210. [19] Rec. Doc. 211. [20] Rec. Doc. 243. [21] Rec. Doc. 210-1. [22] Id. at 1–7. [23] Id. at 8–12. [24] Id. at 12–14. [25] Id. at 14–15. [26] Id. at 15–20. [27] Id. at 21–25. [28] Id. at 1. [29] Id. at 1–2. [30] Id. [31] Id. at 2. [32] Id. [33] Id. at 3 [34] Id. at 3–4. [35] Id. at 4. [36] Id. at 5. [37] Id. at 5–6. [38] Id. at 6. [39] Id. at 8. [40] Id. [41] Rec. Doc. 210-6 at 5. [42] Rec. Doc. 210-1 at 8–9. [43] Id. at 8–9. [44] Id. at 9. [45] Id. [46] Id. at 10. [47] Id. at 11. [48] Id. [49] Id. [50] Id. at 12. [51] Id. [52] Id. [53] Id. [54] Id. (citing 2018 WL 1399173 (E.D. La. Feb. 23, 2018)). [55] Id. at 13. [56] Id. at 13–14. [57] Id. at 14. [58] Id. [59] Id. [60] Id. [61] Id. at 15. [62] Id. [63] Id. [64] Id. [65] Id. (emphasis in original). [66] Id. [67] Id. at 16 (emphasis in original). [68] Id. [69] Id. [70] Id. at 17 (citing 107 F.3d 110, 123 (2nd Cir. 1997)). [71] Id. [72] Id. at 18. [73] Id. at 18–19. [74] Id. at 19. [75] Id. at 20. [76] Id. at 21. [77] Id. [78] Id. at 22. [79] Id. at 23. [80] Rec. Doc. 211 at 2. [81] Id. [82] Id. [83] Id.at 4. [84] Id. [85] Id. at 5. [86] Id. at 7. [87] Id. [88] Id. [89] Id. [90] Id. [91] Id. [92] Id. at 8. [93] Id. at 9. [94] Id. at 10. [95] Id. [96] Id. at 10–11. [97] Id. at 10. [98] Id. [99] Id. at 12. [100] Id. [101] Id. [102] Id. [103] Id. at 14. [104] Id. [105] Id. at 15. [106] Id. [107] Id. [108] Id. [109] Id. [110] Id. [111] Id. [112] Id. at 16 (citing 45 F.3d 969, 977 (5th Cir. 1995)). [113] Id. at 17. [114] Id. at 18. [115] Id. at 17. [116] Id. at 18. [117] Rec. Doc. 277-2 at 2. [118] Id. [119] Id. [120] Id. at 3. [121] Id. at 4. [122] Id. [123] Id. [124] Id. at 5. [125] Id. [126] Id. [127] Id. at 6–7. [128] Id. at 7. [129] Id. at 8. [130] Id. [131] Id. [132] Id. [133] Id. [134] Id. at 9. [135] Id. at 10. [136] Rec. Doc. 210. [137] Forbes v. County of Orange, 2013 WL 12165672 (C.D. Cal. August 4, 2013); Mixed Chicks LLC v. Sally Beauty Supply LLC, 879 F. Supp. 2d 1093, 1095 (C.D. Cal. 2012); City of Wilmington v. United States, 152 Fed. Cl. 373, 381 (Fed. Cl. 2021); Herbert v. Ascension Parish School Board, 2019 WL 2913982 at *2 (M.D. La. July 8, 2019); In re Gabapentin Patent Litigation, 2011 WL 1807448 at *4 (D. N.J., May 12, 2011). [138] Rec. Doc. 210-1 at 1–2. [139] Id. [140] Rec. Doc. 211 at 2. [141] Rec. Doc. 77 at 10. [142] Id. [143] Id. at 3. [144] Id. at 3-4. [145] Id. at 4. [146] Rec. Doc. 22 at 5. [147] Rec. Doc. 210-1 at 5. [148] Id. at 5-6. [149] Id. at 6. [150] Rec. Doc. 11 at 4. [151] Rec. Doc. 210-6. [152] Rec. Doc. 210-1 at 8. [153] Rec. Doc. 210-7. [154] Rec. Doc. 211-11. [155] Rec. Doc. 243 at 4–5. [156] Rec. Doc. 5. [157] Rec. Doc. 211-7 [158] Id. at 8, 11, 23, 26, 29, 32, 33. [159] Id. at 1–33. [160] Rec. Doc. 210-1 at 8–9 [161] Id. at 9. [162] Rec. Doc. 211 at 9–10. [163] Rec. Doc. 210-1 at 10-11. [164] Rec. Doc. 76. [165] Id. at 3. [166] Id. at 6 [167] Fed. R. Evid. 401. [168] Wright v. Nat'l Interstate Ins.Co., 16-16214, 2018 WL 1399173 (E.D. La. Feb. 23, 2018) (Fallon, J.) [169] Fed. R. Evid. 404(b)(1). [170] Fed. R. Evid. 404(b)(2). [171] United States v. Ebron, 683 F.3d 105, 131–32 (5th Cir. 2012). [172] Rec. Doc. 210-1 at 13. [173] Exon Mobil Corp. v. Hill, 751 F.3d 379, 381 (5th Cir. 2014). [174] La. Code Evid. Art. 506(B) [175] Bridlington Co., L.L.C. v. S. Disposal Servs., L.L.C., 51,138 (La. App. 2 Cir. 2/15/17); 216 So. 3d 219, 223 (internal citations omitted). [176] Id. [177] Rec. Doc. 210-1 at 14. [178] La. Code. Evid. Art. 506(B) [179] Brown v. Car Ins. Co., 634 So. 2d 1163 (1994); La. Code. Evid. Art 506(D). [180] Rec. Doc. 210-1 at 17–20. [181] Baxter v. Palmigiano, 425 U.S. 308, 318 (1976). [182] FDIC v. Fidelty & Deposit Co. of Maryland, 45 F.3d 969, 977 (5th Cir. 1995). [183] Id. [184] Id. [185] Id. [186] United States v. Portillo, 969 F.3d 144, 179 (5th Cir. 2020) (citations omitted). [187] FDIC, 45 F.3d at 978. [188] Rec. Doc. 210-1 [189] Id. at 21. [190] Id. [191] Id. [192] Rec. Doc. 210.